ABSTRACT
In some countries which have criminalised work without a specific residence status, penalties of fines and confiscation of all wages earned as a result of the work carried out are applied. These fines and confiscation orders are justified as measures to make work in an irregular immigration status unattractive for migrants. In June 2014, the United Kingdom’s Work and Pensions Secretary (Iain Duncan Smith MP) asserted that “what is happening progressively, more and more, is people mostly from southern and eastern Europe have actually ended up being Big Issue sellers and they claim, as self-employed, immediately, tax credits”. Three years later, The Daily Mail claimed that judges, in a “key judgement”, had “cracked down on the scandal of poor EU migrants selling the Big Issue as a back door to claiming benefits”. In truth, the case in question (DV v SSWP) was not a “key judgement” but merely fact and context specific. DV, a Romanian national, came to the UK in January 2015 and began selling the Big Issue in April of that year. At that time, an EEA national’s “right to reside” in the UK depended (as it does now) on the person being a “qualified person” – an expression that included those who were “self-employed” in the UK “in accordance with article 49 of the [TFEU]”. Such work had to be genuine and effective rather than marginal and ancillary. There was no dispute that 77the First Tier Tribunal had correctly directed itself on the law and it had correctly determined – on the facts – that DV’s business was not viable but a means to obtain benefits. DV’s employment was, therefore, neither genuine nor effective. The case contrasts with Bristol City Council v FV, involving another Big Issue seller (a Romanian national) where the Upper Tribunal declined to interfere with the finding of fact made at first instance that FV was entitled to certain public funds (“benefits”) by reason of being “self-employed” for the purposes of the “right to reside” test. The Upper Tribunal noted that there was nothing in EU law that suggested that selling the Big Issue cannot constitute “self-employment”. The latter decision, and the Tribunal’s reasoning, did not feature in media reports.
